C2007/3032, Transcript of Proceedings [2007] AIRCTrans 439 (4 September 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17312-1

VICE PRESIDENT WATSON

C2007/3032

s.120 - Appeal to Full Bench
Appeal by GridComm Pty Ltd
(C2007/3032)

SYDNEY

1.24PM, TUESDAY, 21 AUGUST 2007

Hearing continuing

PN1

MR M EASTON: I seek leave to appear on behalf of the appellant, Mr Davis.

PN2

MR A JOSEPH: I seek leave to appear on behalf of the respondent, together with MR P PASFIELD for the CEPU. There's no objection from this side of the bar table, your Honour.

PN3

THE VICE PRESIDENT: Yes. Thank you, Mr Joseph. Leave is granted to counsel in both cases.

PN4

Yes, Mr Easton.

PN5

MR EASTON: Thank you, your Honour. Today, as I understand it, the matter is listed simply in relation to the stay. We thank your Honour for bringing the matter on further.

PN6

THE VICE PRESIDENT: Apologies for the late start, due to my late arrival.

PN7

MR EASTON: I was grateful for the time anyway, your Honour. The matter that comes to a Full Bench on appeal originated as an underpayment claim in the Chief Industrial Magistrates Court of New South Wales, in relation to the certified agreement in question. Whilst within the Chief Industrial Magistrates Court, the parties agreed that a more appropriate way to determine the issue at hand was to make a section 170LW application, as contemplated in the terms of the certified agreement between the parties; and as preserved by schedule 7 of the Workplace Relations Act; the effect of section 170LW being preserved by, I think it's clause 2 of schedule 7 of the Workplace Relations Act.

PN8

I don't think there's any issue about the jurisdiction of the senior Commissioners of the Full Bench to deal with the matter that is before your Honour now. But the matter started as an underpayment claim and then specific matters were put before Commissioner Harrison, for Commissioner Harrison to determine. Fundamentally, the question before Commissioner Harrison was whether or not, under the terms of the certified agreement, Mr Baker was required to reimburse the appellant for some course fees for some training.

PN9

Commissioner Harrison ultimately I don't think determined that question at all, but instead found that by way of an estoppel by conduct the respondent, or now the appellant, could not claim a reimbursement from Mr Baker in relation to the training fees. I'm speaking in somewhat shorthand as to the facts of the matter and I can expand on those if your Honour would like me to, in terms of how Commissioner Harrison appeared to come to that conclusion. But the short statement for the purpose of the stay is that he was empowered with the jurisdiction to deal with the matter by agreement. He didn't deal with the matter that was specifically put and strayed, we say, impermissibly into an area of estoppel by conduct which didn't answer the question.

PN10

In so straying we say Commissioner Harrison erred in applying the principles that might have applied, if any at all, to estoppel by conduct. I hope your Honour does not want me to go chapter and verse through all of those principles for today's purpose.

PN11

THE VICE PRESIDENT: No, I don't.

PN12

MR EASTON: I must say that the only other search for the Commission considering estoppel by conduct, so far as I could find, was a matter that your Honour determined I think some time this year, involving Kangan Batman TAFE; where there was an assertion of estoppel by conduct and your Honour found on the facts that that just simply couldn't arise on the particular facts. I don't think your Honour dealt at all with any kind of matter of principle in relation to the issues of estoppel by conduct there. So far as I'm aware there's no other matters where the Commission has dealt with that concept.

PN13

If Commissioner Harrison's decision was permitted to stand, then it would potentially open Pandora's Box in terms of the enforcement and the application of certified agreements and instruments of the Commission. One consequence of Commissioner Harrison's decision was that, what we say were the binding terms of a certified agreement that permitted an employer to seek reimbursement for training fees, was circumscribed by what Commissioner Harrison found to be conduct, but what we would submit to be at its highest a tacit waiver or a tacit silence as to the resolution of the question of training.

PN14

But the effect of Commissioner Harrison's decision on one view of it is that that conduct circumscribed the effect of the certified agreement. That is, the employer had a right to seek the reimbursement and because of Commissioner Harrison's findings it didn't deal with some words from the employee. It lost its right.

PN15

THE VICE PRESIDENT: You are putting it more than the question of there being an error in the determination of the dispute. You are saying that in having recourse to the notion of estoppel by conduct the function performed by the Commissioner travelled beyond the dispute, as the parties had empowered the Commission.

PN16

MR EASTON: Yes. It's twofold. He travelled beyond the dispute and when he did, with due respect to him, he got it wrong.

PN17

THE VICE PRESIDENT: So you put it on both bases, yes.

PN18

MR EASTON: Yes, and the basis where we say he has got it wrong has, no its face, potentially significant consequences for the application of instruments of the Commission generally. So ultimately in a question of leave to appeal I think it's a matter that a Full Bench will comfortably be satisfied is a matter of sufficient interest to grant leave; and it's a matter of quite substantial consequence for certified agreements and other instruments in effect.

PN19

There does not seem to be any recent or any particularly old exploration of the principles of a stay application in this jurisdiction. I have a copy of Alexander v Cambridge Credit Corporation, a decision of the New South Wales Court of Appeal some time ago, which is one of the classic cases of dealing with the principles of stay applications. I can take your Honour through that if you like, but I think that the key submission - unless your Honour wants to hear the long version - is there's a prima facie matter that in all likelihood will be dealt with by a Full Bench on leave, and prima facie when one considers the question put to Commissioner Harrison and the answer given, prima facie he has gone beyond the jurisdiction conferred on him.

PN20

The balance of convenience in this instance favours the appellant, because it's a matter where originally, as I say, it was an underpayment claim. There's a matter of $5,000 that is at issue between the parties. I don't think it could be suggested that our client is in danger of changing its capacity to pay the money if it's ultimately unsuccessful in the appeal. The appellant is a large corporation; I don't think that is going to be an issue.

PN21

But there is a real concern that the appellant, if the stay is not granted, may have difficulty recovering that money. In context again it's an underpayment claim and the claim was that the money should have been paid in early 2005 upon termination to Mr Baker. There has obviously been some time when Mr Baker has been without that money, but at the same time it's difficult to see there being any prejudice to him in the stay order being granted pending the appeal, compared to the difficulties potentially of having to chase the moneys if we are successful on the appeal.

PN22

THE VICE PRESIDENT: So the money was expended when? In 2004, was it, originally?

PN23

MR EASTON: The training was conducted in October 2004 and the agreement was made in 2005 but with effect to 2004. This was one of the arguments, we say, that Commissioner Harrison failed to deal with properly and that is that Mr Baker took the money, if you like, when the agreement as it was made in February 2005 was backdated to October 2004. So he took the benefits of the certified agreement and the backdating arrangements contained within the agreement. He took that benefit but is not prepared to now be subject to the term that was introduced by that backdating as well, and by the making of the agreement, the term that the employer be entitled to seek reimbursement for course fees.

PN24

The basis of how the clause in question came about was explored by Commissioner Harrison and that was that the particular industry that the appellant operates in involves technology that is updated frequently, and as part of the certified agreement it's clear that the union and the union's members and the appellant were cognisant of the need to have training. But the cost of that training and the appellant's concern, which comes through, that employees stay after they receive this expensive training so that the money is not, if you like, spent for somebody else's employee ie. they receive the training and then move on.

PN25

So there's a two-stage reimbursement provision in the agreement. That is if the worker stays for - if he leaves I think within six months then it's full reimbursement, and after six months and before 12 it's 50 per cent reimbursement, and after 12 months no reimbursement at all. One matter that the appellant put to Commissioner Harrison below was that if there be an estoppel against the appellant there also would be an estoppel against Mr Baker, who accepted the back pay under the agreement but didn't accept the concurrent right for the employer to be able to deduct or to seek reimbursement for training fees.

PN26

The timing of how that all fits together I think is canvassed as well by Commissioner Harrison and that is that when the training occurs in the October 2004 there is already on foot the discussions towards the making of the certified agreement; and the provisions in relation to the reimbursement of training. So the submission below was that the arrangements that were put in place were in the context of these arrangements ultimately becoming part of the certified agreement.

PN27

I stand to be corrected, but I don't think Commissioner Harrison made a final finding on that but he noted that it was put in that context. So it's a matter where there's a claim for an underpayment in the context of a worker who took the benefits of the retrospective certified agreement but was not meeting the obligations or the rights conferred on the employer appellant by that certified agreement. In the context of my opening that there were, if you like, matters beyond the questions asked and that he got it wrong, those matters of estoppel fall squarely into the second basket.

PN28

They are not really maters that even Commissioner Harrison should have gone to, but if he went to the question of estoppel by conduct then he should have also dealt with, satisfactorily, Mr Baker's conduct and how that might have estopped him. That is one of the ways on the grounds of appeal that we say he made a mistake in where he went when he went beyond the question asked.

PN29

THE VICE PRESIDENT: You say, in your primary submission, that he went beyond the dispute that was identified for determination because the agreed question or agreed dispute, as set out in paragraph 6 of the decision, that is the second dot point I take it; and that is referable to whether there was an obligation under the particular clause of the agreement. The other dot points go to the consequences of an answer either in the affirmative or the negative; and that that question so described does not extend to whether there is merit or something beyond the obligation under the clause, based on the conduct or anything else. It's simply a question of entitlements or obligations under interpretation of the instrument.

PN30

MR EASTON: Yes.

PN31

THE VICE PRESIDENT: Is that how you put it?

PN32

MR EASTON: Yes, and the appellant's submission when called upon in relation to the estoppel question squarely raised that very if you like jurisdictional objection or objection to scope. It's tab 3 in the appeal book, and paragraph 20 perhaps most conveniently summarises that submission put.

PN33

THE VICE PRESIDENT: Yes.

PN34

MR EASTON: One only needs to compare paragraph 6 to the end result to see that it's an answer to a different question, a fundamentally different question. Your Honour, may have noted that the appellant's grounds of appeal include matters of procedural fairness and natural justice in that the matter was raised not by the union, who is now the respondent, but by the appeal by the Commissioner himself, and well after the submissions on the day and the evidence were closed.

PN35

THE VICE PRESIDENT: Are you saying there wasn't an adequate opportunity for the parties to address the issue?

PN36

MR EASTON: Well, I think I haven't compared word for word the Commissioner's letter which is tab 4, the Commissioner's associate's letter, to his ultimate decision. I would have to say they contain matters that go close to his conclusions about the estoppel, but I've not compared them strictly. It's a question of evidence rathe than of Commissioner Harrison deciding the issue without any possibility of addressing him on it. He clearly has done that and your Honour sees that by tab 4. He has formed a view of a possibility and raised it. The difficulty we have is that by then the evidence was closed. There was a very material difference in the case that the now appellant was called upon to answer, that is alluded to his question on whether or not, by the appellant's conduct, it was estopped.

PN37

THE VICE PRESIDENT: There wasn't an opportunity to supplement the evidence?

PN38

MR EASTON: No, there wasn't. The final sentence on the first page of tab 4; it's the last paragraph of substance in the letter. It's clear that the Commissioner was inviting submissions only. In my submissions, the balance of convenience seems to be the most prominent factor in your Honour's consideration in this case. As I say, it's now - if it's a payment at all - a 2-year old payment. If the matter can be dealt with in the ordinary course of the appeal process there would be no prejudice to Mr Baker by staying the order pending that appeal process. As I say, there's no or there ought not be any issue as to the appellant's ability to pay, if the order so is. So it's a question of concern about the recovery.

PN39

THE VICE PRESIDENT: What do you say should be the normal timing of at least the hearing of the appeal in the circumstances of this matter?

PN40

MR EASTON: Well, I must say I'm working on the assumption that the entire matter is resolved by Christmas, or at least a decision reserved by then. But I mean, there's not a lot of material for a Full Bench to consider in terms of the transcript or the evidence or anything like that. It's not really a matter of contesting evidentiary findings. I'm not abandoning that possibility but it's really a matter of looking at what was the question asked, then the answer given and whether (1) the answer could be given and (2) whether the answer was right. It's not a matter that will need to traverse a Full Bench through many, many factual matters.

PN41

THE VICE PRESIDENT: Is there any reason why this matter couldn't be heard - the dates the Full Bench is looking at is the week commencing 17 September.

PN42

MR EASTON: The short answer to that is no. I know we're here before your Honour on the 18th.

PN43

THE VICE PRESIDENT: Yes.

PN44

MR EASTON: I mean, I think your Honour's immediate question is the timeframe rather than the specific date.

PN45

THE VICE PRESIDENT: Yes, that is correct.

PN46

MR EASTON: We don't see any difficulty with that kind of timeframe.

PN47

THE VICE PRESIDENT: Yes.

PN48

MR EASTON: As I say, I've brought copies of Alexander v Cambridge Credit Corporation if your Honour requires it but I think the dominant matter really is the balance of convenience, which we say favours the appellant. I don't think your Honour is called upon to consider in any great depth the merit of the appeal other than that prima facie, we would say, a matter that is properly put as an appeal and has some reasonable prospect of success.

PN49

THE VICE PRESIDENT: I think the principles, as I understand them, are more expressed in terms of an arguable case in terms of both leave and the merits of the appeal and a consideration of the balance of convenience in the jurisprudence of this Commission.

PN50

MR EASTON: Yes.

PN51

THE VICE PRESIDENT: Yes. I don't take it that there's likely to be much dispute as to the approach of the Commission, the principles to be applied.

PN52

MR EASTON: No.

PN53

THE VICE PRESIDENT: Yes.

PN54

MR EASTON: Unless there's any other particular matters your Honour would like me to - - -

PN55

THE VICE PRESIDENT: Thank you, Mr Easton.

PN56

Mr Joseph.

PN57

MR JOSEPH: Thank you, your Honour. Your Honour, firstly, if I could ask your Honour to go to the decision of Commissioner Harrison at tab 6. what the Commissioner has recorded there accurately reflects, in my submission, what the terms of the referral, if I can call it that, by the parties was. The first point I would make - can I just say this, subject to something that I want to say about the order that has been made by a Commissioner by not having been complied with, I don't quibble with the exchange that just took place in relation to the principles applicable to stay. What is written there is what was, I suppose, the agreed basis of the referral.

PN58

My friend has referred your Honour to the second bullet point in paragraph 6:

PN59

The dispute for determination is whether Mr Baker was obligated to refund the cost of specialist training under clause 41.9 of the agreement.

PN60

Two points I would like to make there, your Honour. Firstly, the submission in paragraph 20 of the further submissions that were put by the company below make a reference, at paragraph 20 which my friend took you to, incorrectly to the nature of the referral. It says:

PN61

The issue -

PN62

I'm quoting there from page 20 of the appeal book, I think it is.

PN63

THE VICE PRESIDENT: Yes.

PN64

MR JOSEPH:

PN65

- is whether Mr Baker was obligated by the terms of the certified agreement to refund the moneys to GridComm.

PN66

Ultimately it may not make too much difference, given what I'm about to say, but that is not equivalent to what was written in the referral. What was said was whether there was a requirement, whether he was obligated to refund under the clause.

PN67

THE VICE PRESIDENT: Paragraph 20 does correctly quote the referral in the early part of the first sentence. But then you are referring to the second sentence where it's expressed differently and you say that there's a substantive difference there.

PN68

MR JOSEPH: Yes. Well, it's probably more - I take your point, your Honour. I take your point. I think perhaps I was probably more responding to my learned friend's submission. As I said, I prefaced that remark by saying that it may not mean too much. The reason I say it is this: what was the agreed referral does not say anything about - it does not go on to say the Commission may not or may only take into account the terms of the agreement. Yes, there was a dispute over whether the company had the right to deduct from the termination pays of Mr Baker the five thousand three hundred and something dollars. But that does not say that the Commission could only take into account the terms of the agreement.

PN69

So the Commission, when it's considering a dispute, can take into account evidence, it can take into account discussions that have occurred between parties and all sorts of things. So that argument, I think, falls away somewhat. Whether the Commission was correct to rely on the principle of estoppel, I will say something about shortly. But to say that the Commission could only, for example, as might be considered by a proper court or a competent court, look at interpreting the agreement is not true. It wasn't that simple and the Commission was not so confined, and it was entitled to take into account other matters, including the evidence that was put before it.

PN70

If I could then go to the points of appeal. If I could say this, your Honour, principally the first issue appears to be the question of natural justice. With respect to my learned friend's argument I think what is behind tab 3 really deals with that, and that is this, that their further submission at tab 4 deals with that argument. My friend is in the territory which has been stated in this Commission and in many other places arising from the principle as enunciated by the High Court in Steed v State Government Insurance. I don’t know that I need to take your Honour to a direct quote of that but in essence what the High Court was saying was, "Well, yes, every party's got a right to be heard. Every party's got a right to natural justice where it would have made a difference".

PN71

If that be accepted, my inelegant paraphrasing of the principle, what would have happened here or what could have happened here different to what did happen? The Commissioner, for abundant caution, took the step of writing in very clear terms to the respondent below, stating an issue that he had on his mind. It dealt with the issue of estoppel by conduct and it clearly identified, on page 22 of the appeal book behind tab 4 in the fourth paragraph, the fact that GridComm did not respond to Mr Baker's representations other than by sending him on the course. The Commission was clearly stating that GridComm's conduct, whether it be referred to as an acceptance of the agreement that was put forward by Mr Baker, or by them being estopped from relying upon the certified agreement, they were being clearly put on notice as to what the issue was.

PN72

True it is that the Commission's letter ended by saying further written submissions should be in by a particular day. That would not have stopped and did not stop the respondent's representatives from asking for the matter to be re-listed. It happens all the time, your Honour, and can be done; and there was nothing in the letter saying they are not allowed to ask. Whether it would have been agreed to, that is of course another matter.

PN73

But can I say this further, your Honour; given that in the proceedings the respondents below, GridComm, did not lead any evidence. There was only one witness and that was Mr Baker. One wonders in those circumstances, where no independent evidence was put on behalf of the company as to what had taken place in the discussions between Mr Baker and his managers, what might then have been said beyond that in relation to the same factual matrix, merely because the issue of estoppel had been raised. So I think that is all I wish to say about the question of natural justice.

PN74

On the question of what actually happened in the proceeding, if I could take your Honour to Mr Baker's unchallenged evidence. He was cross-examined but no evidence was put in the contrary. Page 48 of the appeal book. I hope I'm referring to these correctly; I'm going by the page numbers on the copy of the appeal book I've got, your Honour, which is the page numbers up at the top right-hand corner.

PN75

THE VICE PRESIDENT: In the statement of Mr Baker?

PN76

MR JOSEPH: Yes, at paragraph 9. Perhaps I've gone slightly ahead of myself here, your Honour. Perhaps if we just keep one finger on that page but then go back to paragraphs 3 and 4 of the decision. We see a document that was provided to Mr Baker. This presumably arose from the terms of what was to become clause 41.9 of the certified agreement. We see over the page Mr Baker objected to the signing of the document, the signing of the agreement and he added some additional words which he then signed and gave back to the company. That was the evidence.

PN77

Now if we go back, your Honour, on that basis to page 48 at paragraph 9. Mr Baker says that he had expressed concerns to Mr Aversa and I think there was a comment made by the Commissioner below that Mr Aversa hadn't been called to give evidence to put a contrary view in relation to this evidence. After the discussions with Mr Aversa, who I understand was the competent manager, he was the national operations manager of GridComm, some additional words were added and the training over at paragraph 10 occurred or commenced the following day on that basis.

PN78

If the terms of that agreement, and by that agreement I mean what he signed, what Mr Baker signed, and what the company did by not - well, the evidence is there was no letter sent to him saying, "No, you've got it absolutely wrong. Do not assume that we are limiting the basis on which we might claim the money back", and no evidence to the contrary to suggest, "Well, I went and told Mr Baker", for example - I'm paraphrasing, your Honour, "I went and told Mr Baker we're not prepared to deal with the matter on this basis, only on the basis of clause 41.9 of the" - I assume - "draft enterprise agreement" at that stage.

PN79

Given that there was no evidence on that basis one wonders how the appellant in this case can now challenge the efficacy and the force of that agreement between Mr Baker and his employer. If there was not a requirement, if I can put it this way, your Honour, from GridComm's point of view to get the agreement of Mr Baker to the terms on which that money would either be refunded or paid or however you want to describe it, why did they actually provide him with a separate agreement or contract to sign in relation to it?

PN80

Can I go beyond that, your Honour, and say this, that as a matter of law - and this is a matter that is perhaps beyond Commissioner Harrison's decision, but would still be relevant to your consideration as to whether there is an arguable case. A number of the points of appeal deal with the principles that don't allow estoppel to be used where it would derogate from the terms of a statutory instrument. That is true to a certain extent. However, it does not stop parties from reaching agreements that are above the statutory minimum. An agreement operates, a certified agreement, and there's no evidence to suggest that there was a separate contract of employment for Mr Baker. So we don't really have, as far as I can tell, any evidence as to the certified agreement being part of his contract of employment.

PN81

I don't know whether it's correct to assume that there was or there wasn't, but be that as it may, the High Court in the Byrne v Australian Airlines litigation made it clear, when they were distinguishing between the rights and obligations under awards and the rights and obligations arising under contracts of employment, that there is nothing when you are looking at how the two collide to stop an agreement being reached or a contract providing for something above the award. That arose from, and what they were quoting with approval, I think in the joint judgment of Chief Justice Brennan, Justices Toohey and I think Gordon, from memory, was a reference back to a High Court decision in Kilminster v Sun Newspapers [1931] HCA 37; [1931] 46 CLR 284; where an employee of a newspaper, whose employment was covered by an award which said that two month's notice had to be given of termination, but he had a separate contract that provided for reasonable notice.

PN82

The High Court said, when the newspaper terminated him, and said, "Well, here's two month's notice or pay in lieu", that he was entitled to reasonable notice; and that there was nothing, simply because of the existence of an award, binding as it is as a matter of law, to stop something in addition or something above that being agreed. That is what has happened here. So any issue of estoppel being incorrectly applied to derogate from a statutory requirement is, with respect, something of a red herring in my respectful submission.

PN83

THE VICE PRESIDENT: You have drawn my attention to page 48 of the appeal book and paragraph 9 of the witness statement of Mr Baker.

PN84

MR JOSEPH: Yes.

PN85

THE VICE PRESIDENT: He refers to additional conditions expressed initially not being agreed but a final form of words being agreed.

PN86

MR JOSEPH: Yes.

PN87

THE VICE PRESIDENT: Are the final form of the words those as set out at paragraph 4 of the decision?

PN88

MR JOSEPH: I understand that to be the case.

PN89

THE VICE PRESIDENT: So they are not simply an alternative position put by Mr Baker?

PN90

MR JOSEPH: No.

PN91

THE VICE PRESIDENT: But you say an agreed addition arising from the discussion with Mr Aversa.

PN92

MR JOSEPH: Can you bear with me for one moment, your Honour? I think the answer to the question is- - -

PN93

THE VICE PRESIDENT: Paragraph 4 of the decision does not state that in terms; it might be consistent with it, but it does not state that.

PN94

MR JOSEPH: No, it does not. I must say my understanding is that that is what that evidence meant and that is what it was taken to mean, your Honour. Unless my learned friend can say something to the contrary. My understanding is that the words that are recorded are in fact the final form of the words. As I said, I must say I thought I had seen another version of this document somewhere in the - if you go to tab 9, your Honour; pages 59 and 60.

PN95

THE VICE PRESIDENT: Yes.

PN96

MR JOSEPH: You will see there at page 60, that is a copy. I've got a version that is a copy of what he signed and sent back. It seems entirely consistent with what is in paragraph 4 of the decision and what is in paragraph 9 of Mr Baker's statement, that that would be what was done after the discussion.

PN97

THE VICE PRESIDENT: It just does not appear to be recorded in paragraph 4 of the decision or paragraphs 37 and 38 of the decision, that that addendum was agreed.

PN98

MR JOSEPH: Whether that was agreed following the discussions with Mr Aversa?

PN99

THE VICE PRESIDENT: Yes.

PN100

MR JOSEPH: Would you bear with me for just a moment, your Honour?

PN101

THE VICE PRESIDENT: Certainly.

PN102

MR JOSEPH: I’m just checking the transcript, your Honour, very quickly. Your Honour, starting at page 31 in the transcript at PN64, Mr Baker is giving examination-in-chief, additional presumably to his statement. He deals with the initial objection and he talks there about the discussion he was having with Andrew, that means Mr Aversa I think. He's giving evidence about what he - he was trying to get to the nub of exactly what the company's problem was and why they were so keen about getting the money back if somebody left. He appears to be giving evidence to say that, "You know, they were concerned about us going to work for a competitor or a particular company", in this case I presume Ericsson because that was where they were doing their contract work.

PN103

There was an objection as to the nature of the evidence, if we go over the page, and the Commissioner after the objection suggested to Mr Bryant from the CEPU that the evidence be given in a more proper form and then if your Honour looks from PN70 down to PN72. I haven't looked through the rest of the transcript in relation to the cross-examination but when I was looking at it this morning I didn't see that that particular paragraph had been dealt with in cross-examination. I'm not sure if I can help you any more on that matter, your Honour. I suppose in my submission - and I note that he says about there being possibly a third version at PN72, but at PN71 he is asked about the final form of the words and I think in the context of the evidence that he's giving, it should be reasonably clear what he is talking about there. That is, the final form of the words that followed the discussion to and fro. I think that evidence would be accepted.

PN104

On the question of the estoppel, per se, the actual decision of the Commissioner whilst it did go into the issue of estoppel, if we begin at paragraph 40 of the decision what is being made clear by Commissioner Harrison - and it's called a representation, there in paragraph 40 of the decision on page 11 - by conduct on the part of GridComm, is really a reference to there being an acceptance by conduct of the contractual term that was put by Mr Baker.

PN105

The use of estoppel as a principle, it's true, has often been shied away from, your Honour, in the employment area. It's not one that is used frequently, but arguments over whether estoppel should be available as a shield or a sword don't really meet the point. Estoppel in the sense that it is an equitable remedy can arise in the law of contract and arises regularly where representations are made between parties. The famous case of Waltman Marr is a case in point and I haven't brought the reference to that, your Honour, but I will assume for present purposes your Honour is aware of the decision and what I'm talking about.

PN106

In that case a representation was relied upon, much to the detriment of the builder in Nowra and Mr Baker relied on a representation in this case. The evidence is this is what he put back to the company, nobody came and said to him, "No, we're not agreeing with that". He goes on the course, he resigns I think at the end of January, 31 January, but then leaves on 10 February which is the same day the certified agreement is certified by Commissioner Harrison, and he has that amount deducted from his pay. So he relied on the representation and acted accordingly.

PN107

So if we go through the main points, your Honour, in my submission there really isn't n the evidence an arguable case to disturb the decision of Commissioner Harrison. There's just no evidence to the contrary about the representations that were made and what happened between the parties. If your Honour accepts that Commissioner Harrison was entitled to have reference to the evidence, as well as the terms of the agreement and the conduct of the parties, in determining the dispute - and remember this was a referral by agreement to deal with a dispute in general terms between the parties - then there's no reason why Commissioner Harrison's decision shouldn't stand; given that, in my submission, the natural justice point does not really have merit and there was a clear basis, whether you call it estoppel by conduct or whether you call it GridComm accepting by conduct, the contract that was put to them by Mr Baker, that there's no basis to disturb the decision.

PN108

On the question of the balance of convenience, if I can just deal with that briefly, Commissioner - your Honour, sorry.

PN109

THE VICE PRESIDENT: Just before you do go to that.

PN110

MR JOSEPH: Certainly.

PN111

THE VICE PRESIDENT: The argument that the Commissioner travelled beyond the dispute that was referred to him appears to revolve around what is meant by the term obligated in the second dot point at paragraph 4. In other words, whether Mr Baker was obligated was a description which relates only to the terms of the agreement or whether it's a more general description that relates to all of the circumstances, including the terms of the agreement. You submit that it is broader and covers all of the circumstances.

PN112

MR JOSEPH: GridComm are looking for - I'll say something further about that, given that you have raised it, your Honour - but can I say this; the assertion, the issue in dispute there was whether clause 41.9 allowed the company to take money off Mr Baker on termination. Now that does not stop the Tribunal, does not stop the Commission from looking for other sources of obligation in deciding the point. You can't do these things in a vacuum. That would be to add words, as I said before, that simply aren't there. By adding words, and I'll paraphrase, "Only by reference to the terms of the agreement, not by reference to the conduct of the parties and representations made". That can't be right, your Honour. That can't be right.

PN113

But even if there was some force in that, clause 41.9 itself - if you go to page 92 of the appeal book.

PN114

THE VICE PRESIDENT: Yes.

PN115

MR JOSEPH: There does not appear to be any disagreement that this was specialist training, from what I'm told, but an employee may request from the company to have the training cost waived due to exceptional circumstances, at which time the company will consider the request. I suppose one could say, "Well, did he raise exceptional circumstances?" or something to that effect. But clearly - and the evidence was, your Honour, that Mr Baker was raising this because he knew the training was coming. The training was starting on the 12th. That was why there was a sense of urgency to get this matter settled beforehand. That in itself could probably give rise to an exceptional circumstance.

PN116

But clearly the agreement, if we assume it has been drafted by laypersons, gives rise to the right to an employee to come and say, "Well, listen I'm worried about this for a particular reason. I'd like to be exempted or you know, to have the clause varied". That is what happened. I appreciate it only uses the word waivered(sic) there but I think if we are looking in terms of the practicalities of it, your Honour, and considering the understanding of the parties, certainly employees would have had the right, if that was the source of the obligations and rights between the parties, he had the right to go and speak to them about it to have something done about the substantive clause.

PN117

The only other thing I would say in relation to merits was that an argument put in relation to Mr Baker being estopped because he had accepted back pay under the terms of the certified agreement; and I understand there may have been some back pay after it was certified on 10 February. I don't know that that can really fly. I haven't looked through every clause of the agreement. I don't know anything and I don’t know that there was a great deal of evidence about the negotiations as to why there was back pay offered. It seems to be a fairly lengthy agreement. I'm sure there were other relevant terms negotiated between the parties, or I assume there were, your Honour. So I don't know that you could pin estoppel, as it were, if it was to be relevant, on Mr Baker purely because he along with other employees accepted back pay.

PN118

Unless there is anything further on the question of arguable case, I would say this in relation to balance of convenience. It was put to the company concerned about Mr Baker paying the money back. There is no evidence as to the respondent below's capacity to pay nor is there evidence about Mr Baker's financial situation. I have to accept that. But can I say this, he has been - it was an order of or an amount of $5,309 - certainly he gave some evidence in his statement to the Commission - I'm sorry, I think it might have been in the transcript. There was some evidence that he gave on transcript, your Honour, about having some concerns at the time the matter was raised because I think he was about to - just bear with me for a moment.

PN119

Yes, if you go to page 31, which is PN64. he gives some evidence there about when he had his initial objection to signing the agreement, that is the letter of 7 October. He talks about the fact that he was concerned because he and his partner were planning to have a baby and - not that that goes to, I suppose, a particular financial need other than the normal financial needs of having children, your Honour, but that is as far as I think I can take it. It's in that realm; for family reasons he was concerned about the money.

PN120

But he has been without the money and can I say this; no order was made as to interest at the time of the decision so that in effect if the decision stands, Mr Baker has lost the benefit of $5,309 for a period of now 2 and a half years, and interest which would normally accrue at 9 per cent for that period of time. That is an argument against the stay, the fact that he has been denied that benefit and is continuing to be denied because no interest is accruing.

PN121

Very much as a secondary argument, your Honour; if I could say this very much as a secondary argument, if your Honour was minded to grant a stay it ought be done with some conditions such that the money was put aside into an account, an interest bearing account, until the matter is determined.

PN122

There is one other thing I think I should say about balance of convenience that I haven't said and I probably should have said it before I talked about the alternative terms on which a stay might be granted. Another thing that might be relevant or I think is relevant, your Honour, to your consideration is the fact that the appellant is in breach of the order. The decision was made on 27 July. The money was to be paid within 14 days. My learned friend's instructing solicitor wrote to the union on 1 August asking whether the union would consent to a stay and then saying if there was no agreement or consent, then a stay would be applied for. That was on 1 August. The CEPU representing Mr Baker, to the best of my knowledge, did not reply at all. No, they didn't reply.

PN123

The 14 days, by my calculation, ran out on the 10th or 11th of August. Whilst the appeal I suppose is still competent per se because it's within the 21-day period, it's outside of the 14 days by a clear three or four days - four or five days, sorry. That is a relevant consideration. It has certainly been a relevant consideration in the New South Wales Industrial Relations Commission and I just through shortness of time I must say I didn't have an opportunity to see whether this issue had been considered on a stay in the Federal Commission, your Honour. But in the State Commission I would refer your Honour to a decision in Nut Shack Franchise v Smith [1999] 90 IR 355, which is authority for the proposition that that is a relevant consideration, when considering the issue of a stay.

PN124

Finally, subject to all those other matters, your Honour, I'm instructed that the respondents on the appeal would not oppose an expedited hearing in the week beginning 17 September. But I would merely request, your Honour, if part of your deliberations was to in fact set the matter down for hearing, I would request that your Honour not set the matter down on 19 September if that is at all possible. Unless there is anything further, your Honour.

PN125

THE VICE PRESIDENT: Yes, thank you, Mr Joseph.

PN126

Mr Easton.

PN127

MR EASTON: Just a few matters if I may, your Honour. As I say, the matter of natural justice is an evidentiary one, not an inability to make submissions about the matter. For the purposes of a stay it's not relevant to be conjecting(sic) or speculating about what evidence might have been made about that. For example, my friend later in his submission talked about the agreement, the document that was asserted as an agreement being the additional page of tab 9 on page 60 in the appeal book. But my reading of Commissioner Harrison's decision - and he does not appear to actually make a finding of fact that that was an agreement that was made. He goes to find something different in paragraph 40 and 41, ultimately concluding:

PN128

In any event there's a substantive legal difference between Mr Baker's addendum and that suggested by GridComm. Mr Baker's addendum was a counter offer. The suggested addendum would have been outright rejection of GridComm's offer.

PN129

He does not seem to go as high anywhere as finding that to be an agreement reached between Mr Baker and the appellant. The references to Byrne v Frew and Kilminster v Sun Newspapers and the like, touch upon the matter of public interest that I was alluding to earlier. That is that Commissioner Harrison's ultimate finding appears to be:

PN130

Because of the conduct, GridComm is -

PN131

This is paragraph 48 on page 12 of the appeal book:

PN132

- GridComm is estopped from relying upon the terms of clause 41.9 of the certified agreement.

PN133

That, in the context of being called upon to decide upon whether the agreement imposes an obligation on Mr Baker to reimburse the appellant, has significant consequences for the application of certified agreements generally. If the enforceability of an agreement is circumscribed in the way that Commissioner Harrison has found it to be then there would be, for one consequence, industrial turmoil; because not only can you look at the terms of a certified agreement, you have also got to look at everybody's conduct under that agreement over the life of it for example.

PN134

The question that was before Commissioner Harrison, and it seems to be a consistent question as put - your Honour drew my friend's attention to the nub of it, I guess, in terms of the meaning in the second dot point. But when your Honour has a look at the transcript on the day that the matter was heard before Commissioner Harrison, and that is at tab 5, the two key paragraphs where the parties are outlining the matters for determination are paragraph 18 and paragraph 28.

PN135

In paragraph 18, even though Mr Bryant had commenced his opening, it's actually Mr Davis's words where he outlines there at paragraph 18 the question for determination. That is squarely put in the context of the agreement. What Mr Davis is getting at, at that point there, your Honour, is that there had been some discussion between the parties about the technicality of it being an obligation to reimburse or an entitlement to deduct the moneys. But it's squarely put by reference to the terms of the certified agreement in paragraph 18 and in 29 Mr Bryant makes it clear when he rises again and says:

PN136

Yes, the fourth point if the Commission finds that Mr Baker was not obligated to by the agreement to(sic) refund an appropriate order for payment be made.

PN137

The question is squarely within the meaning of the agreement.

PN138

My friend says there's no evidence of the respondent's capacity to meet the order but I must say I had anticipated that there wouldn't be any contest of this. GridComm is a wholly owned subsidiary of John Holland, which is a wholly owned subsidiary of Leightons so your Honour can take judicial notice there that there ought not be any concern in that regard. I don't think in reality my friend is putting that point with much force, in any event.

PN139

If your Honour is of a mind to make an alternate order as proposed by my friend, then that is a facility that can easily be put in place. For example my instructing solicitor, Mr Davis, has indicated that the appellant can put the said sum in a controlled moneys account pending the appeal. If that be the turning point for your Honour, that is something that we can readily proffer.

PN140

Finally, my friend's reference to Nut Shack is somewhat surprising. The facts in Nut Shack were that a franchisor who was unsuccessful in defending an unfair contract claim in the New South Wales Industrial Relations Commission in court session, as it was. It has changed its name since then but it was in court session in the Superior Court of Record. Nut Shack franchises was unsuccessful and was ordered to pay in the vicinity of $160,000 to the applicant in this case who was a franchisee. It, as I understand the decision, consciously chose not to seek a stay of the orders and then sought to progress its appeal, despite its refusal to pay the amounts that were ordered. Some time later the respondent to the appeal made application in the Industrial Relations Commission in court session and relied on principles from the Court of Appeal; and principles particularly to Superior Courts of Record, dealing with the Superior Courts of Record having an implied jurisdiction if not a specific one to protect its own proceedings; and applying Young v Jackman principles said that if an appellant prima facie is in contempt of the court then the court ought not be inclined to allow it to proceed with its appeal.

PN141

The ordinary practice, I'm pleased to say, in the Industrial Relations Commission and in court session is that when a notice of appeal is lodged and a stay is asked for, it's brought on in the same way as in this tribunal and the stay application is dealt with expeditiously and sensibly without any worry about whether or not the orders have been complied with. So I'm not quite sure where my friend goes with that point.

PN142

But as I say, if your Honour is minded to make an alternative order of that kind then that can be readily proffered and readily organised and confirmed by correspondence if required.

PN143

THE VICE PRESIDENT: Based on an undertaking by your client to pay the amount into an interest bearing account?

PN144

MR EASTON: Yes. In their name.

PN145

THE VICE PRESIDENT: Yes.

PN146

MR EASTON: Unless there's any other particular matters that your Honour wishes me to take you to.

PN147

THE VICE PRESIDENT: No. Thank you, Mr Easton.

PN148

I propose to issue a stay of the order of Commissioner Harrison. I'm satisfied that there is an arguable case in relation to at least some of the grounds of appeal foreshadowed in this matter, both in terms of public interest and the merits of the appeal. I have regard in that respect to ground 1 of the notice of appeal and ground 4.

PN149

I further consider that the balance of convenience favours the granting of a stay in terms of the employment having being ceased, the relevant deductions being made from termination moneys, and I would require in terms of the stay that an amount be placed in an interest bearing account on behalf of the appellant so that should the appeal be unsuccessful the amount with interest would be payable to Mr Baker on determination of the matter.

PN150

I have asked the appellant to prepare draft terms of a stay order and provide those to my associate at the earliest opportunity. A stay order will be issued. I also propose just quickly to go off the record and look at directions for the hearing of the appeal as such. I can indicate that it is proposed to hear the appeal with some expedition.

<OFF THE RECORD

PN151

THE VICE PRESIDENT: I've discussed with the parties programming of the hearing of the matter and formal directions in accordance with a timetable discussed with the parties will be issued. The matter will be listed for hearing in Sydney on Thursday 20 September and the stay order will be issued by the Commission, following receipt of a draft order on behalf of the appellants in this matter.

PN152

The Commission will now adjourn.

<ADJOURNED UNTIL THURSDAY 20 SEPTEMBER 2007 [2.48PM]